[Federal Register Volume 72, Number 114 (Thursday, June 14, 2007)]
[Rules and Regulations]
[Pages 32813-32815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11519]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

RIN 0648-AT60
[Docket No. 061020273-7001-03; I.D. 010307A]


Fisheries of the Northeastern United States; Summer Flounder 
Fishery; Emergency Rule Extension

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

ACTION:  Temporary rule; emergency action extended.

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SUMMARY:  NMFS is extending the revised summer flounder total allowable 
landings (TAL) implemented on January 19, 2007, until December 31, 
2007, the end of the 2007 fishing year. This emergency rule extension 
specifies allowed harvest limits for both the commercial and 
recreational summer flounder fisheries. The TAL contained within this 
emergency rule extension continues the previous harvest limits for 
summer flounder that became effective on January 19, 2007, which 
superceded the harvest limits initially implemented on January 1, 2007. 
This action continues the prohibition on federally permitted commercial 
vessels landing summer flounder in Delaware in 2007 due to continued 
quota repayment of previous year's overages.
    This emergency rule extension is necessary to maintain the 
increased 2007 summer flounder harvest levels previously found to be 
consistent with the Magnuson-Stevens Fishery Conservation and 
Management Reauthorization Act of 2006 (Reauthorized Magnuson-Stevens 
Act) through the end of the 2007 fishing year. Extending this emergency 
action will ensure continued compliance with regulations implementing 
the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan 
(FMP). In addition, this action will continue to ensure that fishing 
mortality rates (F) or exploitation rates, as specified in the FMP, are 
not exceeded.

DATES: Effective from July 18, 2007 through December 31, 2007.

ADDRESSES:  Copies of the Supplemental Environmental Assessment are 
available from Patricia A. Kurkul, Regional Administrator, Northeast 
Region, National Marine Fisheries Service, One Blackburn Drive, 
Gloucester, MA 01930-2298. This document 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: Summer flounder is currently under a 
rebuilding plan. NMFS published a final rule containing the 2007 summer 
flounder TAL on December 14, 2006 (71 FR 75134). The 12.983-million-lb 
(5,889-mt) TAL in that rule became effective on January 1, 2007, which 
was a 45-percent decrease from the TAL specified for 2006.
    Following the publication of the 2007 summer flounder TAL in the 
Federal Register, the Reauthorized Magnuson-Stevens Act was signed into 
law on January 12, 2007. Contained within the Reauthorized Magnuson-
Stevens Act is a specific provision under section 120(a) that 
authorizes the Secretary of Commerce (Secretary) to extend the 
rebuilding time frame for summer flounder to no later than January 1, 
2013, provided that several specific conditions are met. The Secretary 
must determine that:
    1. Overfishing is not occurring in the summer flounder fishery and 
that a mechanism is in place to ensure overfishing does not occur in 
the fishery and stock biomass levels are increasing;
    2. The biomass rebuilding target previously applicable to the 
summer flounder stock will be met or exceeded within the new time for 
rebuilding;
    3. The extension period is based on the status and biology of the 
stock and the rate of rebuilding;
    4. Monitoring will ensure rebuilding continues;
    5. The extension meets the requirements of National Standard 1 
found at section 301(a)(1) of the Magnuson-Stevens Act; and
    6. The best scientific information available shows that the 
extension will allow continued rebuilding.
    On behalf of the Secretary, NMFS previously determined that these 
six criteria had been met and that there is a reasonable basis to 
extend the summer flounder rebuilding time frame to no later than 
January 1, 2013. Based on these determinations, NMFS implemented an 
emergency rule, effective January 19, 2007 (72 FR 2458), to increase 
the TAL to 17.112 million lb (7,762 mt). The agency's decision to enact 
emergency rulemaking was consistent with the policy guidelines for the 
use of emergency rules published in the Federal Register on August 21, 
1997 (62 FR 44421).
     A detailed discussion of the Secretarial determinations made 
relative to section 120(a) of the revised Magnuson-Stevens Act appears 
in the initial emergency rule (72 FR 2458, January 19, 2007) and is not 
repeated here. The emergency rule TAL is based on the revised 
rebuilding time frame ending no later than January 1, 2013, which 
supersedes the previous TAL of 12.983 million lb (5,889 mt) that was 
based on a rebuilding period end date of January 1, 2010. The 17.112-
million-lb (7,762-mt) TAL will continue to be allocated 10.27 million 
lb (4,658 mt) to the commercial sector and 6.84 million lb (3,104 mt) 
to the recreational sector under this extension. The commercial

[[Page 32814]]

summer flounder state quotas remain unchanged by this extension from 
those described in the initial emergency action published on January 
19, 2007 (72 FR 2458), and are not repeated here.
    This emergency rule extension does not alter the previous amount of 
summer flounder set aside for research in the December 14, 2006, final 
rule. Four research projects that will utilize the previously 
established summer flounder RSA of 389,490 lb (177 mt) have been 
approved by NMFS.

Delaware Summer Flounder Closure

    Under this extension to the January 19, 2007 (72 FR 2458) emergency 
rule, the amount of the 2006 summer flounder quota overage (inclusive 
of overharvest from previous years) continues to be greater than the 
amount of commercial quota allocated to Delaware for 2007. As a result, 
there continues to be no quota available for 2007 in Delaware. The 
regulations at Sec.  648.4(b) provide that Federal permit holders, as a 
condition of their permit, may not land summer flounder in any state 
that the Regional Administrator has determined no longer has commercial 
quota available for harvest. Therefore, landings of summer flounder in 
Delaware by vessels holding commercial Federal summer flounder 
fisheries permits are prohibited for the duration of this emergency 
rule extension, 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 
duration of this emergency rule extension, unless additional quota 
becomes available through a transfer.

Comments and Responses

    NMFS received one comment on the initial emergency action. NMFS 
received 1,321 form letters prior to the emergency rule comment period 
that are being considered as comments on the initial emergency rule. 
Some commenters submitted similar comments on separate occasions.
    Comment 1: This commenter spoke in support of the original TAL 
implemented for January 1, 2007, and the previously mandated 10-year 
rebuilding schedule.
    Response: The 12.983-million-lb (5,889-mt) TAL previously 
implemented by NMFS for the 2007 fishing year was considered 
sufficiently risk averse to ensure stock rebuilding occurred by January 
1, 2010, as previously required by the Magnuson-Stevens Act prior to 
its 2006 reauthorization. Following the reauthorization of the 
Magnuson-Stevens Act, the Secretary was afforded specific authority to 
extend the rebuilding period to no later than January 1, 2013, provided 
the criteria previously outlined in this rule were met. The criteria 
within section 120(a) of the Reauthorized Magnuson-Stevens Act were 
found by the Secretary to have been satisfied and, accordingly, NMFS 
recalculated the TAL for 2007 based on an extended rebuilding period. 
The resulting 17.112-million-lb (7,762-mt) TAL implemented by emergency 
rule (January 19, 2007, 72 FR 2458) and extended by this action has a 
75-percent probability of achieving the new F level (Frebuild=0.203) 
calculated for stock rebuilding by January 1, 2013. The 17.112-million-
lb (7,762-mt) TAL has a 99-percent probability of not exceeding the 
2007 Fmax threshold (0.28). The 17.112-million-lb (7,762-mt) 
TAL and associated commercial and recreational management measures will 
effectively ensure that overfishing does not occur in the summer 
flounder fishery in 2007. The emergency rule TAL extended by this 
action will somewhat mitigate the socio-economic impacts associated 
with the lower TAL initially implemented for 2007 while ensuring that 
the requirements of the Magnuson-Act and the fishery management plan 
are met. NMFS asserts that this was the desired effect of the specific 
rebuilding period extension authority granted to the Secretary by the 
U.S. Congress through the Reauthorized Magnuson-Stevens Act.
    Comment 2: One thousand three hundred and twenty-one comments were 
received as form letters from various recreational fishing groups. They 
spoke in favor of increasing the summer flounder TAL as soon as 
possible following the enactment of the Reauthorized Magnuson-Stevens 
Act. These commenters urged NMFS to establish a TAL with no more than a 
50-percent probability of not exceeding the 2007 F target.
    Response: The Reauthorized Magnuson-Stevens Act was signed into law 
on January 12, 2007. NMFS worked as quickly as possible to implement an 
increased TAL and published an initial emergency rule to increase the 
TAL from 12.983-million-lb (5,889-mt) to 17.112-million-lb (7,762-mt) 
on January 19, 2007 (72 FR 2458).
    NMFS is continuing to implement measures designed to mitigate the 
retrospective patterns in fishing mortality, stock size, and 
recruitment by utilizing a more conservative TAL for 2007, to ensure 
that the necessary fishing mortality target is actually achieved. The 
risk-averse approach of setting a TAL with a 75-percent probability of 
not exceeding the 2007 F target was applied in setting the initial 
12.983-million-lb (5,889-mt) TAL effective on January 1, 2007 (71 FR 
75134). This approach was also applied to the initial emergency action 
17.112-million-lb (7,762-mt) TAL implemented on January 19, 2007 (72 FR 
2458).
     Achieving the fishing mortality target level in 2007 is necessary 
to provide for rebuilding of the summer flounder stock within the 
extended rebuilding period, ending no later than January 1, 2013, as 
implemented by the Reauthorized Magnuson-Stevens Act.

Classification

    This emergency rule extension is published under the authority of 
the Magnuson-Stevens Act.
    This action has been determined to be not significant for the 
purposes of Executive Order 12866.
    Because no general notice of proposed rulemaking is required to be 
published in the Federal Register for this emergency rule extension by 
5 U.S.C. 553 or by any other law, the analytical requirements of the 
Regulatory Flexibility Act do not apply; thus, no Regulatory 
Flexibility Analysis was prepared.
    The Assistant Administrator finds it is unnecessary and contrary to 
the public interest to provide for prior notice and an opportunity for 
public comment on this emergency rule extension. In the initial 
emergency rule published on January 19, 2007 (72 FR 2459), NMFS 
requested, and subsequently received, comments on the increased summer 
flounder TAL. Therefore, the agency has the authority to extend the 
emergency action for up to 186 days beyond the July 19, 2007, 
expiration of the initial emergency action. NMFS, through this action, 
extends the emergency action to the end of the 2007 fishing year (165 
days), which ends on December 31, 2007.
    The measures of this emergency rule extension remain unchanged from 
the measures contained in the initial emergency rule that increased the 
2007 summer flounder TAL. The extension measures must be in place by 
July 19, 2007, or the lower TAL based on the 2010 rebuilding target 
will go into effect. The initial emergency rule implemented a higher 
TAL in response to authority granted by the reauthorization and 
amendment of the Magnuson-Stevens Act. Section 120 of the Reauthorized 
Magnuson-Stevens Act grants the Secretary the ability to extend the 
rebuilding period for summer

[[Page 32815]]

flounder from January 1, 2010, to no later that January 1, 2013. 
Congress intended this provision to be used to mitigate negative socio-
economic impacts of the lower TAL for all of the 2007 and subsequent 
fishing seasons in the rebuilding period, provided the criteria for 
utilizing the longer rebuilding period were met. In implementing the 
initial emergency rule, the Secretary determined that the criteria had 
been met. Extending the provisions of the emergency rule without notice 
and comment rule will foreclose that possibility that the lower TAL 
would go into effect and cause disruption of the summer flounder 
fishery and unnecessary adverse economic impacts. Such a waiver is 
consistent with both Congressional intent and the expectations of the 
public.
    NMFS solicited public comment during the 30-day post-promulgation 
comment period on the measures contained in the initial emergency 
action and extended by this action. The comments received were 
considered and are addressed in the preamble to this rule; however, no 
change to the emergency action measures were enacted as a result of the 
comments received. The Council will be developing non-emergency 
measures for the 2008 fishing year that begins on January 1, 2008, to 
be implemented through notice and comment rulemaking. The public 
comments on the emergency rule will be considered in the context of 
that rulemaking.
    The measures in this emergency rule extension continue to meet the 
fishing mortality objectives of the summer flounder fishery management 
plan and satisfies section 120 of the Reauthorized Magnuson-Stevens 
Act. Therefore, for the reasons outlined above, the Assistant 
Administrator finds it is unnecessary and contrary to the public 
interest to provide any additional notice and opportunity for public 
comment under 5 U.S.C. 553(b)(B) prior to publishing the emergency rule 
extension.

    Dated: June 8, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E7-11519 Filed 6-13-07; 8:45 am]
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