[Federal Register: November 21, 2007 (Volume 72, Number 224)]
[Rules and Regulations]
[Page 65466-65469]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21no07-13]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 070827484-7581-02]
RIN 0648-AV99
Fisheries of the Northeastern United States; Recreational
Management Measures for the Summer Flounder Fishery; Fishing Year 2008
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: Through this final rule, NMFS is implementing coastwide summer
flounder recreational management measures to complete the rulemaking
process initiated in March 2007. This action is necessary to implement
appropriate coastwide management measures to be in place on January 1,
2008, following the expiration of the current state-by-state
conservation equivalency management measures on December 31, 2007. The
intent of these measures is to prevent overfishing of the summer
flounder resource during the interim between the aforementioned
expiration of the 2007 recreational measures and the implementation of
measures for 2008.
DATES: Effective 0001 hours, Eastern Standard Time (EST), January 1,
2008.
ADDRESSES: Copies of the Supplemental Environmental Assessment, as well
as the original Environmental Assessment, Regulatory Impact Review, and
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) completed for the
2007 recreational management measures are available from Patricia A.
Kurkul, Regional Administrator, NMFS Northeast Region, 1 Blackburn
Drive, Gloucester, MA 01930-2298. The Supplemental Environmental
Assessment is also accessible via the Internet at http://www.nero.noaa.gov
.
FOR FURTHER INFORMATION CONTACT: Michael P. Ruccio, Fishery Policy
Analyst, (978) 281-9104.
SUPPLEMENTARY INFORMATION: The summer flounder recreational fishery is
managed cooperatively under the provisions of the Summer Flounder,
Scup, and Black Sea Bass Fishery Management Plan (FMP) 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 Council
prepared the FMP under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevenson Act), 16 U.S.C.
1801 et seq. Regulations implementing the FMP appear at 50 CFR part
648, with subparts A (general provisions) and G (summer flounder)
pertaining to the summer flounder fishery. 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.
Under the FMP and regulations, the Council may recommend and NMFS
may approve one of two approaches for managing the summer flounder
recreational fishery: Conservation equivalency (either state-by-state
or regional) with a precautionary default backstop approved by NMFS; or
coastwide management measures. The FMP requires that the Council review
updated assessment and fishery information on an annual basis and
recommend to NMFS both a Total Allowable Landings (TAL) and
recreational management measures.
For the 2007 recreational fishery, the Council recommended and NMFS
approved state-by-state conservation equivalency. When the conservation
equivalency measures expire at the end of a fishing year, coastwide
measures found at Sec. Sec. 648.103(a) and 648.105(a) become
effective. Typically, the coastwide measures are adjusted during the
annual rulemaking process that establishes recreational management
measures to ensure that the coastwide measures are sufficient to
constrain recreational landings to the established harvest limit. This
is done even if conservation equivalency is implemented, as was done
for 2007, because the coastwide measures serve as the interim measures
in place in the following year (i.e., 2008) until new measures are put
in place. This is typically completed by late spring or early summer.
However, because of timing issues that arose from the reauthorization
of the Magnuson-Stevens Act that granted authority to extend the summer
flounder rebuilding period, and a subsequent increase to the 2007 TAL,
NMFS did not implement
[[Page 65467]]
any revised 2007 coastwide measures to serve as the 2008 regulatory
backstop after conservation equivalency expires. Prior to this rule,
the coastwide measures in the regulations were a 4-fish possession
limit, a 17-inch (43.18-cm) minimum fish size, and no closed season.
These measures were determined to be insufficient to ensure that the
2007 recreational harvest limit would not be exceeded. Additional
detail on the background and development of the 2007 recreational
management measures and the 2008 coastwide interim management measures
are contained in the preamble of the respective proposed rules (72 FR
12158; March 15, 2007, and 72 FR55166; September 28, 2007) and are not
repeated here.
This action is necessary to complete the final detail of the 2007
summer flounder recreational management measures rulemaking and should
not be confused with the upcoming process to develop the 2008
recreational management measures. The Council will begin development of
the 2008 recreational management measures, based on updated assessment
information and 2007 fishery information, through its Monitoring
Committee meeting in November 2007. The Council will consider the
Monitoring Committee's recommendations for 2008 management measures
during its December 2007 meeting in Secaucus, NJ.
A proposed rule to implement summer flounder coastwide recreational
interim management measures of an 18.5-inch (46.99-cm) minimum fish
size, a 4-fish possession limit, and a year-round season was published
in the Federal Register on September 28, 2007 (72 FR 55166), with
public comment accepted through October 15, 2007. This final rule
implements the interim summer flounder coastwide management measures
proposed by NMFS, as presented in the proposed rule and outlined as
follows.
The Commission's Technical Committee (TC) conducted analysis that
indicated an 18.5-inch (46.99-cm) minimum fish size with a 4-fish
possession limit and a year-round season would constrain landings to 90
percent of the emergency rule increased harvest limit (2,181,735 fish).
By implementing these measures, the normal regulatory process that
occurs when conservation equivalency is utilized to manage the summer
flounder recreational fishery will be completed. These measures will
replace the existing coastwide measures regulatory language of a 17-
inch (43.18-cm) minimum fish size, a 4-fish possession limit, and no
closed season, and serve as the default management measures in place on
January 1, 2008, after conservation equivalent measures have expired.
These new coastwide measures will remain effective until they are
either superceded by conservation equivalency measures or revised, as
needed, to ensure that the 2008 recreational harvest limit will not be
exceeded.
These measures are sufficiently risk averse as interim measures to
ensure that overfishing will not occur while new measures, based on the
updated 2007 stock assessment, are developed for implementation in mid-
2008. Summer flounder are typically found offshore during colder winter
months and only limited recreational fisheries occur in the southern
range of the stock during spring. Marine Recreational Fisheries
Statistical Survey (MRFSS) data from 2001-2006 show that less than 2
percent of the annual harvest occurs in the first two MRFSS data
collection periods (called waves) of the year (January-April).
Approximately 31 percent of the coastwide summer flounder harvest
occurs in Wave 3 (May-June).
Based on recent years' development and rulemaking schedules when
conservation equivalency has been utilized for summer flounder
recreational management measures, it is expected that updated measures,
based on 2007 recreational landings and adjusted for any quota
overages, would be in place before Wave 4 (July-August) and the bulk of
summer flounder recreational fisheries begin in 2008. If different
coastwide measures are recommended by the Council and Commission and
implemented by NMFS for 2008 management, it is expected that those
measures would be in place during Wave 2 (March-April 2008).
Comments and Responses
Three comments were received regarding the proposed 2008 interim
coastwide recreational management measures. Two of the comments
received did not address any aspect of the proposed 2008 interim
coastwide recreational management measures: One stated that summer
flounder quotas should be reduced in 2008, and the other expressed
general displeasure with recreational fishing opportunities. NMFS
anticipates publishing a proposed rule for the 2008 summer flounder TAL
before December 2007. That proposed rule, when published, would be the
appropriate rule to address comments on quota reductions, therefore
those two comments are not addressed here.
Comment 1: The commenter inquired why a coastwide measure would be
implemented that may penalize states that have used conservation
equivalency measures as an effective means of constraining recreational
harvests to or below the state's respective target.
Response: This commenter appears to have confused the 2008 interim
coastwide management measures with the yet to be developed 2008
management measures. As previously stated in the preamble to this final
rule, the measures implemented by this rule will remain effective until
replaced, by either conservation equivalency or updated coastwide
measures, sometime in late spring or early summer of 2008. Coastwide
measures have always become the management measures in place in the
interim between the expiration of conservation equivalency and the
implementation of new measures that are based on updated assessment and
fishery information. The measures of this rule are necessary to ensure
that the relatively minor amount of summer flounder recreational
harvest that occurs in late winter will be adequately constrained by
appropriate measures. The Council has not yet initiated the process
that will develop the measures that will be utilized to manage the bulk
of the 2008 recreational fisheries that occur during summer and fall.
The Council may consider both state-by-state or regional conservation
equivalency or modification of the coastwide measures to manage the
2008 summer flounder recreational fishery.
Classification
The Administrator, Northeast Region, NMFS, determined that this
final rule is necessary for the conservation and management of the
summer flounder fishery and that it is consistent with the Magnuson-
Stevens Fishery Conservation and Management Act and other applicable
law.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA incorporates the IRFA, a summary of the significant issues raised
by the public comments in response to the IRFA, and NMFS responses to
those comments, and a summary of the analyses completed to support the
action. A copy of this analysis is available from the NMFS (see
ADDRESSES).
Final Regulatory Flexibility Analysis
Statement of Objective and Need
A description of the reasons why this action is being taken, and
the objectives
[[Page 65468]]
of and legal basis for this final rule are explained in the preambles
to the proposed rule and this final rule and are not repeated here.
Summary of Significant Issues Raised in Public Comments
A summary of the comments received, and the responses thereto, are
contained in the ``Comments and Responses'' section of this preamble.
No significant issues were raised by those submitting comments,
therefore; no changes to the proposed rule were required to be made as
a result of the public comments.
Description and Estimate of Number of Small Entities to Which This Rule
Will Apply
The proposed measures could affect any of the 967 vessels
possessing a Federal charter/party permit for summer flounder in 2006,
the most recent year for which complete permit data are available.
However, only 331 of these vessels reported active participation in the
recreational summer flounder fishery 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
NMFS undertook this additional recreational management measure
rulemaking to implement interim coastwide measures that are designed to
constrain recreational harvest to the 2007 recreational harvest limit
as increased by emergency rule on January 19, 2007 (72 FR 2458), and
extended for the remainder of 2007 (72 FR 40077; July 23, 2007). The
need to develop and implement these measures resulted from public
comments received on the 2007 recreational management measures proposed
rule (72 FR 12158; March 15, 2007) that indicated the originally
proposed measures (Alternative 2) for a 1-fish possession limit, a 19-
inch (48.26-cm) minimum fish size, and no closed season would be
severely restrictive following the implementation of the increased 2007
TAL.
During the 2007 recreational management measures rulemaking, NMFS
ultimately implemented a final rule (72 FR 30492; June 1, 2007) to
implement state-by-state conservation equivalency to manage the 2007
summer flounder recreational fishery. This rendered the coastwide
measures moot for 2007; however, the coastwide measures are necessary
as the interim management measures for the first third of 2008, after
conservation equivalency has expired but before updated measures are
developed and recommended for implementation by the Council.
Recreational harvest data indicate that only a small percentage of the
summer flounder fishery is likely to occur during the interim
recreational management measures effective period. However, the
Alternative 2 coastwide measure available to NMFS during the
recreational management measure rulemaking development was, as the
public indicated, highly restrictive under the higher 17.112-million-lb
(7,762-mt) TAL implemented and extended by emergency rule. Alternative
2 had been developed and analyzed to constrain landings to the
recreational harvest limit resulting from the lower, pre-emergency TAL
of 12.983 million lb (5,889 mt). NMFS indicated in the 2007
recreational management measures final rule that it would undertake
separate notice-and-comment rulemaking to propose and implement
coastwide measures for the interim period of 2008 that were analyzed
for effectiveness relative to the final, higher 2007 TAL.
The 18.5-inch (46.99-cm) minimum fish size with a 4-fish possession
limit and a year-round season (Alternative 3) implemented by this rule
minimizes, to the extent possible, the economic impact on small
entities while ensuring that the mortality objectives of the FMP and
summer flounder rebuilding program will be met in the first third of
2008. The Council-proposed coastwide management measures of Alternative
2 (a 1-fish possession limit, a 19-inch (48.26-cm) minimum fish size,
and no closed season) would have been unduly restrictive, constraining
recreational harvest to an estimated 55 percent of the 2007
recreational harvest limit resulting from the emergency rule increased
TAL. By contrast, the measures implemented by this rule are projected
to constrain the recreational harvest to 90 percent of the increased
TAL. The increased number of fish available for landing under
Alternative 3 results in a lower impact to small entities that
participate in the early season fishery by allowing slightly larger
fish to be retained. The previous coastwide management measures in
regulation (Alternative 1) for a 4-fish possession limit, a 17-inch
(43.18-cm) minimum fish size, and no closed season was projected not to
constrain recreational harvest to the 2007 recreational harvest limit.
Therefore, the measures implemented by this rule are the only
alternative that minimizes economic impacts by allowing the maximum
potential harvest, to the extent practicable, yet achieves the
biological objectives of the FMP.
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 letter to permit holders that also serves as
the small entity compliance guide was prepared and will be sent to all
holders of Federal party/charter permits issued for the summer
flounder, scup, and black sea bass fisheries. In addition, copies of
this final rule and the small entity compliance guide are available
from NMFS (see ADDRESSES) and at the following Web site: http://www.nero.noaa.gov
.
Dated: November 14, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs,National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 648 is amended as
follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.103, paragraph (b) is revised to read as follows:
Sec. 648.103 Minimum fish sizes.
* * * * *
(b) Unless otherwise specified pursuant to Sec. 648.107, the
minimum size for summer flounder is 18.5 inches (46.99 cm) TL for all
vessels that do not qualify for a moratorium permit, and charter boats
holding a moratorium permit if fishing with more than three crew
members, or party boats holding a moratorium permit if fishing with
passengers for hire or carrying more than five crew members.
* * * * *
0
3. In Sec. 648.105, the first sentence of paragraph (a) is revised to
read as follows:
[[Page 65469]]
Sec. 648.105 Possession restrictions.
* * * * *
(a) Unless otherwise specified pursuant to Sec. 648.107, no person
shall possess more than four summer flounder in, or harvested from, the
EEZ, unless that person is the owner or operator of a fishing vessel
issued a summer flounder moratorium permit, or is issued a summer
flounder dealer permit. * * *
* * * * *
[FR Doc. E7-22741 Filed 11-20-07; 8:45 am]
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